William W. Park

Soft Law and Transnational Standards in Arbitration: The Challenge of Res Judicata

In international proceedings, a transnational “soft law” often finds expression in rules, guidelines and canons of professional associations which serve to supplement the “hard law” of national statutes and court decisions. Memorializing the experience of those who sit as arbitrators or serve as counsel, such standards contain a degree of circularity, in that relevant norms both derive from and apply to cross-border arbitration. Neither the nature nor the limits of “soft law” always present themselves with clarity. Often the litigants’ agreement fails to provide standards on controverted questions whose answers fall beyond common practice. In such instances, the integrity of the process requires a healthy humility from scholars and practitioners professing to summarize arbitral standards.

Arbitration’s Discontents: Of Elephants and Pornography

### (a) Sources of Unhappiness ARBITRATORS OFTEN complain about frivolous motions and excessive requests for documentary discovery. Scholars worry that arbitration allows business managers to evade statutory norms that further vital public policies. Winning claimants lament that judicial review of awards impairs neutrality and finality. Losing litigants grumble that arbitrators apply the law either too strictly or not strictly enough. Discontent aims principally at the abuse of otherwise legitimate pro-cedures, whether in arbitration itself or in related court actions. Arbitrators and judges are increasingly aware of the need to discourage litigants from frustrating the basic aims of business arbitration: dispute resolution that is both relatively efficient and reasonably free from excessive judicial intervention. Although these aspirations do not lend themselves to facile analysis, they can help frame a dialogue that promotes reasonable choices about acceptable tactics, with sensitivity to the inevitable cultural predispositions existing in today’s international commercial community. ### (b) ‘We Know It When We See It’ For better or for worse, international commercial arbitration lacks any universally recognized standard-setting body. No arbitral ‘Miss Manners’ sets worldwide procedural etiquette. Statutes and conventions contain only general principles (arbitrators must be free of bias, respect the limits of their authority and give each side an opportunity to present its case), and arbitral institutions leave arbitrators wide discretion in establishing facts and interpreting contracts. Treatises on international arbitration have only persuasive authority.1 Attempts to define ‘abuse’ in arbitration bring to mind the line by US Supreme Court Justice Potter Stewart reversing a movie theatre’s obscenity conviction. Admitting an inability to define ‘hard core’ pornography, Stewart added: ‘But I know it when I see it’.2 British judges sometimes apply a similar (but less risque) characterization test. In deciding that a floating crane was not a ‘ship or vessel’ for purposes of insurance policy, Lord Justice Scrutton referred to the gentleman who ‘could not define an …